Government wants the High Court to decide whether Biggie Butale has legal standing before hearing his challenge to the statutory removal of Penal Code provisions that once criminalised consensual same-sex relations.
GAZETTE REPORTER
Government has mounted a preliminary challenge to former politician and lawyer Biggie Butale’s bid to overturn the administrative removal of Penal Code provisions that criminalised consensual same-sex relations.
Butale filed his substantive application at the Gaborone High Court on 14 July 2026, challenging Statutory Instrument No. 41 of 2026. The instrument, titled the Rectification of the Laws (Penal Code) Order, 2026, was published on 27 March 2026 and deleted paragraphs (a) and (c) of section 164 from the published Laws of Botswana.
The State is now asking the court to determine whether Butale has locus standi, the legal standing to bring the case, and whether his papers disclose a sustainable cause of action before the merits are heard.
THRESHOLD FIGHT
According to a filing notice dated 5 August 2026, Deputy Attorney General Joao Salbany brought an application for directions under Order 28 of the High Court Rules before Justice William Moncho.
The State wants the proceedings dismissed if either preliminary objection succeeds. Salbany argues that Butale has “failed to establish a direct, current, and legally recognised interest in the relief sought” and that his founding affidavit “does not disclose a legally sustainable cause of action.”
He further contends that the alleged deficiencies are “fatal” to Butale’s review application and seeks dismissal with costs.
POWER DISPUTE
Butale’s challenge is not an attempt to revive the criminal provisions themselves. He accepts the court decisions that rendered them unconstitutional and unenforceable.
His complaint is instead that Attorney General Dick Bayford, acting as Law Revision Commissioner, allegedly exceeded the powers granted by the Revision of Laws Act by deleting the provisions administratively when, according to Butale, formal repeal belonged to Parliament.
Butale says he brings the case “both in my personal interest and that of the public.” He also states that he opposes the legalisation of consensual same-sex relations on religious grounds.
COURT HISTORY
The legal history is well established. On 11 June 2019, a three-judge High Court bench in Motshidiemang v Attorney-General, High Court Civil Case No. MAHGB-000591-16, declared sections 164(a) and (c) unconstitutional, together with related provisions.
The Court of Appeal upheld the core ruling on 29 November 2021 in Attorney General v Motshidiemang, Civil Appeal No. CACGB-157-19.
Following the appeal judgment, the Attorney General’s Chambers published Penal Code (Amendment) Bill No. 29 of 2022 on 21 October 2022 to amend the affected provisions. Parliament later deferred the Bill in August 2023 while considering how the formal changes should be made.
INSTRUMENT CHALLENGED
Butale argues that while the Bill remained pending, the Law Revision Commissioner published Statutory Instrument No. 41 of 2026 on 27 March this year and achieved through statute-law revision what Parliament had not completed legislatively.
“That conduct is unlawful,” Butale argues.
The immediate question before Justice Moncho, however, is narrower: whether Butale is legally entitled to bring that challenge at all and whether his case is properly constituted to proceed.